ACS Panel on Nominations, Recess Appointments and the Filibuster

On Saturday morning I also attended an ACS panel on “Congressional Gridlock in the Executive: A Battle Over Nominations, Recess Appointments, and the Use of the Filibuster,” featuring law professors Michael Gerhardt and Michael McConnell, Louis Fisher of the Congressional Research Service, Marge Baker of the People for the American Way and moderated by Professor Neil Kinkopf. As with yesterday’s post, my summary (and some comments) are below the jump.

Kinkopf opened suggesting there should be agreement that there is gridlock in the confirmation process noting that the number of judicial vacancies has increased during the Obama Administration. In answer to the question, “how did we get here?” Professor Gerhardt noted that the constitutional design invites both conflict and accommodation, and that as bad as the current gridlock in the confirmation process may be, it has been worse. As for what has led to the current conflict, he noted that there has been substantial payback and tit-for-tat that has accelerated at least since the Bork nomination. [Obstruction and ideological opposition to lower court nominees actually began as early as 1985, as I discussed here.] Further, there is as much obstruction of nominations, judicial and otherwise, because Senators are often able to engage in obstruction without significant political cost.

Whereas Gerhardt suggested that the current gridlock was not unprecedented, PFAW’s Marge Baker suggested otherwise, noting that the number of nominations for which cloture nominations had to be filed has increased dramatically, even for those nominees without significant opposition. Baker called these “filibusters” of nominees, even though in most cases the cloture motions passed and the nominees have been confirmed (albeit after some delay). [For what it’s worth, I would only characterize the defeat of a cloture motion as a “filibuster.”] Baker also noted Senate Republicans unprecedented decision to oppose all appellate judicial confirmations for the rest of the year. While it is traditional to slow down the rate of confirmation at the end of a presidential term, some appellate nominees have been confirmed at the tail end of recent presidents’ terms.

Professor McConnell, who has himself been through the judicial confirmation process, noted the increased escalation of opposition to judicial nominees, but challenged Baker’s suggestion that a successful cloture motion indicates there was a “filibuster.” Forcing a cloture motion takes more time, but does not prevent a nominee from being confirmed, and Senate Majority Leader Harry Reid has not been particularly aggressive about brining nominations to the floor and forcing votes. Professor McConnell noted that concerns about the obstruction of nominations is an important concern, but not new, and expressed pleasure that many who supported obstruction in the past, including the use of real filibusters against judicial nominees, are now more concerned about it. But he also noted that most politicians only oppose the obstruction of their own, and don’t support eliminating the obstruction of nominees across the board. Professor McConnell suggested the solution is to agree on a set of rules for nominations that take effect at some point in the future so that it would not be clear would benefit from the new rules. [I’ve endorsed a similar idea.]

Turning to the question of recess appointments, Professor Kinkopf noted the current dispute over the validity of recess appointments, such as that of Richard Cordray to head the Consumer Financial Protection Board, in response to a Republican filibuster of his confirmation – a filibuster that was motivated by concerns about the structure of the CFPB, and not concerns about Cordray as a nominee. Whatever justification there may have been for making a recess appointment of Cordray, Professor McConnell noted, this could not apply to the NLRB nominees who were recess appointed only two days after their names had been sent to the Senate. Further, Professor McConnell noted, there are serious questions as to whether there can be a recess appointment without a real recess, and suggested that Presidents may have been violating the express terms of the constitutional requirements for recess appointments for many decades. (See here for more on McConnell’s views of recess appointments.) Louis Fisher echoed the questions about the constitutionality of the recess appointments, but also expressed concern about the increased use of pro forma sessions to prevent confirmations. Notably, Fisher was also quite critical of the OLC opinion justifying the constitutionality of the recess appointments of Cordray and the NLRB members.

Another interesting point on recess appointments was Professor McConnell’s suggestion that the recess appointment clause itself was outdated, having been drafted to address the problem of a Senate that would be out of session for months at a time with little ability to reconvene quickly. Thus the clause was intended to address the reality that the Senate would be out of action for a long time, not that the Senate would refuse to acquiesce to the President’s nominations. Were the Constitution rewritten or amended, McConnell suggested, there would be no need for such a clause.

Several panelists commented that they were uncomfortable with the recess appointment of Article III judges. This prompted Professor McConnell to offer an interesting hypothetical: Suppose President Obama is reelected, and Senate Democrats only retain a small majority in the Senate. Then suppose President Obama nominates someone like California Supreme Court Justice Goodwin Liu to the Supreme Court. (Recall that President Obama nominated Liu to the U.S. Court of Appeals for the Ninth Circuit and his nomination was filibustered by Senate Republicans.) Assume that Senate Republicans filibuster the nomination and President Obama places Liu on the Supreme Court with a recess appointment. Would those who have criticized the recess appointment of judges in the past, criticize this move? Even if it would mean the Court might operate short-handed for much if not all of a term?

Another interesting aspect of the panel was that while there was significant criticism of the GOP’s obstruction and filibuster efforts against President Obama’s judicial nominees, few suggested that removing the filibuster option for judicial nominees would be a good solution. (Time permitting, I would have asked directly whether the panelists would support eliminating the filibuster for nominations, judicial and executive alike.) Professor Gerhardt said the most important step would be to eliminate secret holds and blue slips so as to force opposition into the open. Baker said she thought the filibuster could serve a useful purpose, but would support eliminating the requirement of 30 hours of debate after passage of a cloture motion, noting this requirement was designed to allow for legislative amendments, and “you can’t amend a nominee.” As longtime readers know, I would get rid of the filibuster for all nominations, to the judiciary and executive branch alike.